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$25,000 Non-Pecuniary Assessment for Skin Burn Requiring Surgical Correction

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Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, assessing damages for a skin burn which required surgical intervention.
In today’s case (Nogueira v. O. Alasaly Pharmacy) the Plaintiff purchased a medicated patch from the Defendant pharmacy to treat muscle soreness in her thigh.  The patch was found to be defective and it caused a burn which required a surgical skin graft for correction.  The Defendant was found at fault for selling the defective product. In assessing non-pecuniary damages at $25,000 Madam Justice Funt provided the following reasons:
[16]         In the late evening of November 12, 2011, the plaintiff was in significant pain and went to the emergency room of her local hospital for further treatment.  She was treated with burn cream and further dressings were applied to the wound.
[17]         On December 13, 2011, Dr. Naysmith, a plastic surgeon with Royal Jubilee Hospital, operated on the burn area using a skin graft technique.  Dr. Naysmith excised the burn, harvested the skin to be grafted, grafted the skin, dressed the donor and burn sites, and stapled burn gauze into position.
[18]         The plaintiff testified that during the month before surgery she had the wound dressing changed every day.  During that period she was “very uncomfortable” when she drove or sat.
[19]         The plaintiff testified that the wound took “a good month” to heal from the surgery.  She says she still experiences tingling in the burn area.  The burn does not affect her mobility.
[20]         On December 4, 2014, Dr. D. Classen, a plastic surgeon, conducted an independent medical examination and prepared a report in contemplation of trial.  The plaintiff entered Dr. Classen’s report, dated March 6, 2014, into evidence.  In his report, Dr. Classen describes the plaintiff’s wound following surgery:
Examination of the left thigh demonstrates a residual scar on the left anterior mid-thigh, 17 centimeters above the knee.  The scar is 7 centimetres in vertical length by 4 centimeters in width.  It is mildly noticeable, as it is hypopigmented compared to the surrounding skin.  It has a slight meshed type appearance to the scar. The contour is depressed by approximately 1 millimeter compared to the surrounding skin.  I could palpate the area with complaint of some mild discomfort and a feeling of numbness described.  The skin graft scar is providing durable skin coverage.  There is no skin breakdown or ulcerations present.  The split thickness skin graft donor site scar is adjacent to this skin graft scar.  The donor site is barely noticeable, there is no contour abnormality.  There is no significant skin discoloration.  It is virtually similar to the surrounding skin appearance.
[21]         Dr. Classen did not testify.  He was not asked to provide an opinion as to whether the plaintiff’s skin was particularly sensitive or was in any way abnormal such that a medicated patch would burn her skin.  This possibility was not suggested in the cross-examination of the plaintiff.
[22]         The plaintiff describes the sight of her thigh now as “disgusting”, “ugly”, “a big splotch”, and feels it is “degrading”.  She does not wear many types of clothes she used to wear.
[23]         From the plaintiff’s presence in the witness box, it was readily apparent to the Court that the plaintiff believed her description of the affected area and was not trying to exaggerate or mislead the Court…
[39]         Section 56(2) of the Sale of Goods Act provides the measure of damages.  Section 56(2) reads:
The measure of damages for breach of warranty is the estimated loss directly and naturally resulting, in the ordinary course of events, from the breach of warranty.
[40]         It is foreseeable that in the ordinary course of events a defective medical analgesic patch (whether defective as a consequence of manufacturing, storage or some other cause) could injure the skin.  It is also foreseeable that a person may be proud of or may be self-conscious as to his or her physical appearance…
[43]         No two cases regarding physical injury will ever be identical.  With respect to a scar, the size, severity and location of the scar are some of the particular factors.  The injured party’s perception of the injury is also an important factor.  In determining the appropriate award, the Court has considered the plaintiff’s anxiety with respect to the scar.  The Court has also included as a factor the tingling she experiences at the site of the scar.  The Court awards $25,000 as non-pecuniary damages.

Statistical Census Data "Squarely Within the Admissible Class of Evidence"

Written by admin on . Posted in ICBC Wage Loss, Uncategorized. 111 Comments on Statistical Census Data "Squarely Within the Admissible Class of Evidence"

The BC Court of Appeal published reasons for judgement today confirming that it is entirely appropriate for an economist to rely on statistical census data in discussing average earnings.
In today’s case (Smith v. Fremlin) the Plaintiff was injured in a motor vehicle collision.   She was a recent law school graduate who just started her career.  The collision caused injuries which limited her capacity to work.  At trial the Court relied on an economists report which discussed average earnings for legal professionals in helping assess the Plaintiff’s diminished earning capacity.  The Defendant objected arguing the report relied on inadmissible hearsay, namely statistical census data.
The trial judge found the defendant’s objections to be ‘nonsensical’.  Despite this the Defendant appealed.   The BC Court of Appeal dismissed the appeal fining statistical evidence is entirely appropriate in these circumstances.  In reaching this conclusion the Court provided the following reasons:
[18]         The appellants say the Wickson report ought not to have been admitted into evidence at trial. They do not object to the qualification of Mr. Wickson as an expert but say his report is defective and inadmissible in two respects. First, it is said to be based upon evidence that is hearsay. Second, it is said to be irrelevant because it measures the income earning capacity of a group to which Ms. Smith does not belong.
[19]         The first of these objections, the hearsay objection, is unfounded. Mr. Wickson expressly describes the source of the data used in the preparation of his report. In addition to relying on published census data, he obtained a special tabulation providing education-specific 5-year age group income data from Statistics Canada. In my view, this data falls squarely within the admissible class of evidence described by Sopinka J. inR. v. Lavallee, [1990] 1 S.C.R. 852; it is information derived from enquiries that are an accepted means of arriving at an opinion within an economist’s expertise. The reliability of the data is supported by strong circumstantial guarantees of trustworthiness. It is, in words cited with approval in Lavallee, evidence of a “general nature which is widely used and acknowledged as reliable by experts in that field.”
[20]         Such was the opinion of this Court in Reilly. There, the Court noted that while hearsay evidence cannot generally be introduced through the admission of expert reports into evidence:
[114]       It is otherwise…with respect to the opinions of … economic experts based on the census data, which are routinely used by experts in their field …
[21]         In my view, the words of Smith J.A. in Jones v. Zimmer GMBH, 2013 BCCA 21, are a complete response to the appellant’s objection to the Wickson report and support and justification for the judge’s decision to admit it:
[50]      … Proponents of expert opinions cannot be expected to prove independently the truth of what the experts were taught by others during their education, training, and experience or the truth of second-hand information of a type customarily and reasonably relied upon by experts in the field. Accordingly, the degree to which an expert opinion is based on hearsay evidence is a matter to be considered in assessing the weight to be given the opinion: R. v. Wilband, [1967] S.C.R. 14 at 21, [1967] 2 C.C.C. 6; R. v. Lavallee, [1990] 1 S.C.R. 852 at 896, 899-900, 55 C.C.C. (3d) 97.
[22]         The second objection, that the Wickson report is inadmissible, as “wholly or largely irrelevant to the Plaintiff’s circumstances,” is equally unfounded. The appellants say the weight of the evidence at trial supported the conclusion that Ms. Smith would likely work within a limited range of the occupations open to a qualified lawyer. They say it was not helpful to receive and not appropriate for the court to rely upon a report describing the earning potential of all female lawyers in British Columbia (rather than, for instance, female lawyers in British Columbia practicing environmental or Aboriginal law in a not-for-profit setting).
[23]         This objection should be considered in light of the generally accepted approach to assessment of claims for loss of income earning capacity, which is, first, to set the parameters of the claim by referring to statistical evidence with respect to the class of individuals to which the plaintiff belongs, and then to adjust the resulting preliminary measure of damages to take into account contingencies that are particular to the plaintiff.
[24]         Average earnings were found to be the proper starting point for the assessment of damages under this head in Reilly, even though there was some evidence of the plaintiff’s specific professional interests. This Court observed:
[122]    The trial judge should have considered the possibility that the respondent might not have realized his professional goals or might have changed his goals.  Qualifying as a lawyer opens up a number of career possibilities.  It is reasonable to assume that the respondent would have remained in the profession.  But he might not have developed the professional skills to achieve above-average earnings.  He might have decided that he did not want to make the personal sacrifices often required to compete professionally at that level.  Other interests, of which he had many before his head injury, or future family commitments, might have persuaded him to alter his goals.  He might have chosen other disciplines within the profession with lower remuneration, such as prosecuting, working in the civil litigation departments of the federal or provincial government, or becoming in-house counsel in the private sector.  It is well known that in the legal profession interests change and there is great mobility.  In addition, there are many above-average lawyers with below-average incomes.
[123]    As well, the possibility that the respondent might have earned more money than predicted should be considered, although we consider that the chance of this happening was relatively low given the evidence of the small numbers of lawyers in Vancouver who have achieved outstanding financial success.  This award is intended to cover the respondent’s working life to age 70, a period of approximately 36 years from the date of trial.  Many things can change during such a long period of time and present-day assumptions are far from immutable.
[25]         Evidence of the earnings of the class of workers to which the plaintiff belongs is clearly relevant to the assessment of a loss of earning capacity. At some point, the evidence may be so general or vague as to be of little assistance but, in my view, that cannot be said of the statistical evidence used in this case. Evidence of the lifetime earning capacity of female lawyers in British Columbia, according to Mr. Wickson’s testimony in cross-examination, was the most specific data available. No further breakdown of incomes of female lawyers in this province by areas of practice is available. The Wickson report therefore was the best available evidence of what has been recognized as the starting point of the assessment of the loss of income earning capacity. It was properly admitted by the judge.
 

BC Court of Appeal Summarizes Test for Asserting and Proving Litigation Privilege

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The BC Court of Appeal released reasons for judgment today providing a concise summary of what is needed to succeed in asserting a litigation privilege claim.
In today’s case (Gichuru v. British Columbia) the Court was asked to address whether various documents were properly withheld due to claims of litigation privilege.  The BC Court of Appeal noted that the following test must be met to justify such a claim:
Madam Justice Gray then proceeded at para. 94, and following, to usefully describe the type of information necessary to sustain a claim of privilege. (Keefer Laundry concerns discovery of documents in a civil suit but the principles discussed by Gray J. are equally applicable to s. 14, the issue under consideration here.) I would adopt her comments as follows:
[96]      Litigation Privilege must be established document by document. To invoke the privilege, counsel must establish two facts for each document over which the privilege is claimed:
1.               that litigation was ongoing or was reasonably contemplated at the time the document was created; and
2.               that the dominant purpose of creating the document was to prepare for that litigation.
(Dos Santos (Committee of) v. Sun Life Assurance Co. of Canada (2005), 40 B.C.L.R. (4th) 245, 2005 BCCA 4 at paras. 43-44.)
[97]      The first requirement will not usually be difficult to meet. Litigation can be said to be reasonably contemplated when a reasonable person, with the same knowledge of the situation as one or both of the parties, would find it unlikely that the dispute will be resolved without it. (Hamalainen v. Sippola [(1991), 62 B.C.L.R. (2d) 254])
[98]      To establish “dominant purpose”, the party asserting the privilege will have to present evidence of the circumstances surrounding the creation of the communication or document in question, including evidence with respect to when it was created, who created it, who authorized it, and what use was or could be made of it. Care must be taken to limit the extent of the information that is revealed in the process of establishing “dominant purpose” to avoid accidental or implied waiver of the privilege that is being claimed.
[99]      The focus of the enquiry is on the time and purpose for which the document was created. Whether or not a document is actually used in ensuing litigation is a matter of strategy and does not affect the document’s privileged status. A document created for the dominant purpose of litigation remains privileged throughout that litigation even if it is never used in evidence.
[33]         In Stone v. Ellerman, 2009 BCCA 294, Chief Justice Finch speaking for the Court, suggested that where the claim is litigation privilege rather than solicitor-client privilege, the description necessary to validate the claim to privilege must be more detailed. At para. 27 he held:
[27]          Some authority supports the proposition that where the privilege claimed is not solicitor-client privilege but rather litigation privilege, as in this case, the premium placed on protecting the information is lower and the description must be more detailed to facilitate challenge. In Hetherington v. Loo, 2007 BCSC 129, Master Caldwell distinguished Leung v. Hanna [(1999), 68 B.C.L.R. (3d) 360 (S.C.)] on the basis that it dealt exclusively with solicitor-client privilege. He reasoned as follows:
[8]        …The present case deals with a claim of privilege based upon the “dominant purpose of litigation” test and protection. While information such as the date and author’s identity may well be protected from disclosure under a claim of solicitor-client privilege, such protection is not necessarily afforded claims of privilege based upon the dominant purpose test. The latter protection is less absolute, more fact driven and subject to challenge. In the recent case of Blank v. Canada (Minister of Justice), [2006] S.C.J. No. 39, Fish J. said at [paragraph] 60:
the litigation privilege should be viewed as a limited exception to the principle of full disclosure and not as an equal partner of the broadly interpreted solicitor-client privilege. The dominant purpose test is more compatible with the contemporary trend favouring increased disclosure.
[9]        And at [paragraph] 61:
While the solicitor-client privilege has been strengthened, reaffirmed and elevated in recent years, the litigation privilege has had, on the contrary, to weather the trend toward mutual and reciprocal disclosure which is the hallmark of the judicial process.
[10]      In order that proper assessment may be made as to the propriety of a claim of litigation or dominant purpose privilege it is necessary that sufficient particulars of the documents be given. In most cases dealing with documents involving adjusters files and certainly in this case, particulars as to date and author must be provided. When dealing with interview notes, transcripts, and statements, it may also be necessary to identify if not the actual subject, at least the category of subject (e.g. eyewitnesses, home-care worker, etc.) involved.
[Emphasis added by Finch C.J.B.C.]
 

Pursuing "Unproductive Trains of Inquiry" Fatal in Request for Further Examination for Discovery

Written by admin on . Posted in BCSC Civil Rule 15, Uncategorized. 54 Comments on Pursuing "Unproductive Trains of Inquiry" Fatal in Request for Further Examination for Discovery

Reasons for judgement were released today by the BC Supreme Court, Victoria Registry, addressing the Court’s discretion to allow a party to conduct an examination for discovery beyond the 2 hour cap called for in Fast Track proceedings.
In today’s case (Henneberry v. Humber) the Plaintiff sued for damages following a collision.  The Plaintiff was examined for discovery for the full two hours allowed under the fast track.  The Defendant brought an application for further time but the court dismissed this finding the examination that was conduced pursued “unproductive trains of inquiry“.  In reaching this conclusion Mr. Justice Romilly provided the following reasons:
[3]             Counsel for the defendant in this particular case indicates there are many reasons for that. It is a complicated case, liability is in issue, and the plaintiff refused to sign a notice to admit certain facts which could have shortened the length of this examination for discovery.
[4]             Counsel for the plaintiff has taken me through the examination for discovery and pointed out many instances where counsel for the defendant has squandered the opportunity to fully take advantage of this two-hour limit that was placed upon these proceedings.
[5]             Two of the leading members of our court, if I could say that, in civil matters, Madam Justice Susan Griffin and Mr. Justice N. Smith, have both written judgments on these new rules. In one case, the case ofMore Marine Ltd. v. Shearwater Marine Ltd., 2011 BCSC 166, Mr. Justice N. Smith, says this at paras. 12-13:
[12]      The new Rules also impose limitations on oral examination for discovery, but do so through a different mechanism.  Rule 7-2 (2) now limits an examination for discovery to seven hours or to any longer period to which the person being examined consents.  Although the test for relevance of a particular question or group of questions remains very broad, examining parties who ask too many questions about marginally relevant matters, who spend too much time pursuing unproductive trains of inquiry or who elicit too much evidence that will not be admissible at trial risk leaving themselves with insufficient time for obtaining more important evidence and admissions.
[13]      As Griffin J. said in Kendall, the time limit imposes a “self-policing incentive” on the party conducting the examination: at para. 14.  At the same time, the existence of the time limit creates a greater obligation on counsel for the party being examined to avoid unduly objecting or interfering in a way that wastes the time available. This interplay was described in Kendall at para. 18:
A largely “hands off” approach to examinations for discovery, except in the clearest of circumstances, is in accord with the object of the Rules of Court, particularly the newly stated object of proportionality, effective July 1, 2010.  Allowing wide-ranging cross-examination on examination for discovery is far more cost-effective than a practice that encourages objections, which will undoubtedly result in subsequent chambers applications to require judges or masters to rule on the objections.  It is far more efficient for counsel for the examinee to raise objections to the admissibility of evidence at trial, rather than on examination for discovery.
[6]             In this particular case, counsel for the plaintiff has taken me to the transcript and I am satisfied that there was far too much time spent pursuing unproductive trains of inquiry. As a result, the two-hour limitation passed by without counsel for the defendant being able to deal with all the issues with which they wanted to deal.
[7]             I am not satisfied that this is a case where I should exercise my discretion to give any further time for further examinations for discovery. The application will be dismissed. Thank you.
 

The "Acceptable Practice" For Taking Pre-Trial Witness Statements

Written by admin on . Posted in Civil Procedure, Uncategorized.

Courts in British Columbia frown on the practice of having witnesses commit their evidence in affidavit form before trial.  Reasons for judgement were released this week by the BC Supreme Court, Vancouver Registry, discussing this practice and explaining the Courts concerns with it.
In this week’s case (Staaf v. ICBC) three witnesses testified on behalf of ICBC. Prior to doing so all provided sworn statements authenticating various business records.  The Plaintiff argued that less weight should be given to these witnesses evidence because of this practice.
The Court agreed that the practice is to be discouraged, however went on to note that in the circumstances of this case no lesser weight should be attached to these witnesses.  In discouraging the practice of having witnesses swear pre-trial affidavits Mr. Justice Burnyeat provided the following comments:
[6]             The question which arises is the propriety of recording statements of witnesses in sworn form before trial.  Statements in sworn form should not be taken.  The consciences of witnesses at a trial are fettered by committing them in advance to a story which is favourable to the client of the lawyer preparing the affidavit.  To obtain a sworn affidavit or a statutory declaration not only influences the evidence that a witness may give under oath at a trial but also compromises accurate and truthful evidence at trial because a previous statement may compromise the interest of the witness who wishes to testify truthfully but the truth may be in conflict with the previously sworn statement.  Before trial, the acceptable practice is to take statements from witnesses but not arrange for those witnesses to swear affidavits or to make statutory declarations.
[7]             If testimony is to be given by affidavit, an application should be made pursuant to Rule 12‑5(59) of the Rules of Court.  Subject to the order of the Court to the contrary, that affidavit must be served at least 28 days prior to such an application being heard by the Court.  No such application was made relating to the evidence of these three affiants…
[9]             Under the circumstances, it would have been appropriate for counsel for the Defendants to apply for an order pursuant to Rule 12‑5(59) and, if that order had been granted, for counsel for the Plaintiff to require those witnesses to be called for cross-examination at trial pursuant to Rule 12‑5(61).  That was not done.
[10]         When it became apparent that three Affidavits had been sworn, counsel for the Defendants was urged by me to make an application that the evidence of the three be given by affidavit and counsel for the Plaintiff was urged to make a subsequent application that the three witnesses be called to the Trial for cross-examination.  That is what occurred and those orders were made.
[11]         In the circumstances of this case, I am satisfied that the sworn testimony of the three witnesses were in no way compromised by the assumption that the truth of what they were saying was in conflict with the affidavits that they had sworn.  First, the affidavits were sworn in order to place before the Court the business records that would be relied upon by the Defendants.  Second, the affidavits were prepared and sworn on the assumption that it would then not be necessary for the three affiants to appear at the Trial.  Third, the three witnesses were merely attaching business records and were not providing direct observations that they had made relating to the accident.  Fourth, the affidavits did not concern controversial matters.
[12]         In the circumstances of this case, I attach no lesser weight to the testimony at Trial of the three witnesses by virtue of the fact that they had all sworn affidavits prior to testifying.  Because of the two Orders made and in view of the nature of what was set out in their Affidavits, I am satisfied that it is not appropriate to disregard the whole of their testimony.

Proving Fault After A Transit Bus Collision – The Reverse Onus

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If you are injured while a passenger in a transit bus British Columbia law requires the bus driver to prove they were not at fault.  This is a ‘reverse onus’ from most personal injury claims where the Plaintiff must prove the Defendant was at fault.  Reasons for judgement were released last week by the BC Supreme Court, Vancouver Registry, addressing this.
In last week’s claim (Tchir v. South Coast British Columbia Transportation Authority) the plaintiff was riding as a passenger in a bus “when an unidentified driver came to an abrupt stop in front of the bus“.  The bus driver was forced to brake hard to avoid collision and the Plaintiff was thrown from her seat and injured.
The Court found both motorists were to blame for the incident.  In discussing the reverse onus in proving fault, Mr. Justice Davies provided the following summary of the law:
[38]         The standard of care owed by the Transit Defendants to Mrs. Tchir as a passenger is a high one. Also, once it is proven that a passenger is injured while riding on a public transit vehicle, a prima facie case of negligence is made out and the onus then shifts to the carrier to establish that the injuries suffered by the passenger occurred without fault on the carrier’s part.
[39]         Those principles were summarized by McLachlin J. (as she then was) in Planidin v. Dykes, [1984] B.C.J. No. 907 (S.C.) [Planidin] at pages 3 and 4 as follows:
There is little dispute as to the legal principles applicable in this case. The standard of care imposed on a public character is a high one. This standard has been established in the Supreme Court of Canada decision Day v. Toronto Transportation Committee [1940] S.C.R. 433, 4 D.L.R. 485 . At page 439 of that report of that case Davis, J. said:
·        ” The duty of the respondent to the appellant, its passenger, was to carry her safely as far as reasonable care and forethought could attain that end.”
·        At page 441 Hudson, J. in an oft-quoted passage, stated:
·        ” Although the carrier of passenger is not an insurer, yet if an accident occurs and the passenger is injured, there is a heavy burden on the defendant carrier to establish that he had used all due, proper and reasonable care and skill to avoid or prevent injury to the passenger. The care required is of a very high degree.”
These, and other cases, establish that once an accident occurs and a passenger is injured, a prima facie case in negligence is raised and the onus shifts to the public carrier to establish that the passenger’s injuries were occasioned without negligence on the company’s part. The question then is: What suffices to discharge this onus?
[40]         Concerning the last question posed, McLachlin J. went on to say:
This has been considered in at least two British Columbian cases and I refer to Lawrie v. B.C. Hydro and Power Authority (unreported, May 31st, 1876, B.C.S.C. Vancouver Registry No. 32708/74) and Fischer v. B.C. Hydro and Power Authority (unreported, February 19th, 1980, B.C.S.C. B781446). In the latter case, at page 8, Taylor, J., set out what the defendant must show to discharge the onus upon it in the following terms:
·        ” Thus there is in this case an onus on the defendants to show that the plaintiff came by her injury without negligence on their part or as a result of some cause for which they are not responsible. That is to say they must show that the vehicle was being driven carefully at the time of her fall, or that her fall resulted from some cause other than the manner in which the bus was being driven.”
[41]         Also instructive on the issue of the standard of care expected of the Transit Defendants in this case is the decision of Dardi J. in Prempeh v. Boisvert, 2012 BCSC 304 [Prempeh] at para. 15, in which she wrote:
… The standard of care owed to a plaintiff passenger by a defendant bus driver is the conduct or behaviour that would be expected of a reasonably prudent bus driver in the circumstances. This is an objective test that takes into consideration both the experience of the average bus driver and anything the defendant driver knew or should have known: Wang v. Horrod (1998), 48 B.C.L.R. (3d) 199 at para. 39 (C.A.); Patoma v. Clarke, 2009 BCSC 1069 at para. 6.
 

$55,000 Non-Pecuniary Assessment for Chronic Bursitis

Written by admin on . Posted in ICBC Shoulder Injury Cases, ICBC Soft Tissue Injury Cases, Uncategorized.

Reasons for judgement were released this week by the BC Supreme Court, Nanaimo Registry, assessing damages for chronic soft tissue injuries and bursitis following a motor vehicle collision.
In today’s case (MacDonald v. Kemp) the Plaintiff was involved in a serious highway collision in 2010.  Fault was admitted.  She was 25 at the time and suffered a variety of injuries to her neck and shoulder which were not expected to fully heal.  In assessing non-pecuniary damages at $55,000 Mr. Justice Baird provided the following reasons:
[3]             As a result of the accident, the plaintiff suffered a number of soft tissue injuries. To this day she continues to experience pain in her lower back, neck and shoulders, primarily the left shoulder. Following the accident and as a result of her injuries she also developed bursitis in her left shoulder. She experiences a consistent dull pain in these locations throughout the day and finds it is aggravated and flares up following strenuous physical activity, thereby requiring that she take non-prescription pain medication. She has suffered occasionally from headaches and tingling in her arms, and sometimes experiences anxiety when she is in a motor vehicle on a busy highway. She had no pre-existing injuries and enjoyed good health before the accident.
[4]             The plaintiff has taken massage, physiotherapy and acupuncture treatments in an effort to rehabilitate these injuries. These passive interventions have afforded her a measure of relief. She also takes Advil to manage her pain and exercises in a home gym to the increase her strength and fitness. The plaintiff’s consulting orthopedic surgeon, Dr. Markland, recommends that these treatments continue.
[5]             Dr. Markland also recommended that the plaintiff avoid “forceful activities” at or above shoulder level, but observed that she “is fortunate that her work is not physically demanding, and that she finds her workstation well adapted. She is still able to pursue many of her pre-accident activities, although at a lower level than before.” While acknowledging that there is still a chance that the plaintiff’s condition may improve, Dr. Markland indicated that, almost four years after the accident, the likelihood is that her back, neck and shoulder pain and weakness are here to stay…
[22]         In my view, the appropriate award is somewhere in the range delineated by these two cases. I intend to emphasize the upper end of that range, primarily because, as previously mentioned, the plaintiff has been compromised in her physical health during the years of her life when she should be enjoying peak strength and functionality. I award $55,000 under this heading.
 

$48,000 Non-Pecuniary Assessment For Soft Tissue Injuries With Tinnitus

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for largely recovered soft tissue injuries with associated tinnitus.
In today’s case (Pichugin v. Stoian) the Plaintiff was involved in a modest rear end collision in 2010.  Fault was admitted.   The Plaintiff was uninjured at the scene but shortly thereafter started to experience neck and back pain.  These symptoms largely recovered by 2012.  In addition to the soft tissue injuries the Plaintiff suffered from tinnitus which was caused secondary to his whiplash injury.  In assessing non-pecuniary damages at $48,000 Mr. Justice Skolrood provided the following reasons:
[66]         I find on the evidence that Mr. Pichugin suffered soft tissue injuries to his neck and back as a result of the accident. Those injuries caused him pain and discomfort for approximately one and a half years after the accident but he improved steadily and his symptoms were largely resolved by the fall of 2012. However, I accept that he continues to experience periodic pain and discomfort in his neck and back, of relatively minor severity, largely related to physical activity…
 
[71]         I am satisfied that Mr. Pichugin’s tinnitus was caused by the accident. Dr. Longridge’s opinion to this effect is supported by the scientific literature as reflected in the Folmer and Greist paper. Even absent the findings in that paper, Dr. Longridge noted again that physicians have long recognized that whiplash can cause tinnitus. The defendant has not established any other likely, or even possible, cause that would serve to undermine Dr. Longridge’s opinion.
[72]         In terms of the impact of his condition on his activities and lifestyle, Mr. Pichugin testified that he is less able to help his wife with things like vacuuming and grocery shopping. However, it was also clear from the evidence that overall Mr. Pichugin is more active than he was prior to the accident as he has increased his activity level following his heart attack.
[73]         With respect to the tinnitus, he testified that while it sometimes causes him difficulty in getting to sleep, once he is asleep it does not interfere with the quality of his sleep. Moreover, he was unable to say with any degree of certainty how much sleep he loses as a result of the condition. Apart from some disruption while reading, there was no evidence that the condition otherwise interferes with his work or his recreational activities…
85]         In my view, the severity and effects of Mr. Pichugin’s tinnitus are less than what was experienced by the plaintiff in Yang and more in line with the condition suffered by the plaintiff in Maddex. However, Mr. Pichugin’s soft tissue injuries were more severe than those of the plaintiff in Maddex. Taking all of the circumstances into account, I find that an appropriate award of non-pecuniary damages is $48,000.
 

$30,000 Non-Pecuniary Assessment for Meralgia Paresthetica With Good Prognosis

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Reasons for judgement were released today by the BC Supreme Court, Vancouver Registry, assessing damages for right leg numbness following a motor vehicle collision.
In today’s case (Saopaseuth v. Phavongkham) the Plaintiff was involved in a 2011 rear end collision.  The Plaintiff suffered soft tissue injuries which recovered within 10 weeks.  Several weeks later the Plaintiff started experiencing numbness in his right leg which was diagnosed as meralgia paresthetica.  Given the time lapse of onset of symptoms the trial largely focused on whether these were related to the crash and ultimately the Court concluded they were.   The symptoms had a favorable prognosis for full recovery and in assessing non-pecuniary damages at $30,000 Mr. Justice Bernard provided the following reasons:
[56]         Mr. Saopaseuth is a 50-year old single man, with no dependents, who, immediately following the MVA, suffered from acute pain and discomfort in his chest, neck and back. He responded well to physiotherapy and these injuries resolved within eight-to-ten weeks. In this relatively short period he took time away from work and managed his household with some assistance from his friends. Mr. Saopaseuth leads a relatively simple and quiet life.  There is no evidence that these injuries caused great personal suffering or had a dramatically negative impact upon his lifestyle and relationships.
[57]         Mr. Saopaseuth began to suffer from MP in his right leg in or about early May 2011; since then it has persisted. The MP has been an irritant and a worry in this protracted period; however, there is no evidence that it has significantly affected his lifestyle or his relationships.
[58]         Significantly, since early 2014 Mr. Saopaseuth has experienced considerable amelioration of his MP, and Dr. Armstrong was pleased to learn of it. It is consistent with Dr. Armstrong’s opinion that Mr. Saopaseuth’s condition is treatable with rehabilitative therapy, although Mr. Saopaseuth has yet to be treated specifically for SPRD…
[60]         Each of the aforementioned cases is, in material aspects, distinguishable from the instant case; nonetheless, they offer a helpful guideline for the assessment of Mr. Saopaseuth’s damages. Taking into account the nature and duration of Mr. Saopaseuth’s various injuries, the relatively modest impact they have had upon him, his relationships, and his lifestyle, and his very favourable prospects for either significant improvement or full recovery from his MP, I assess his non-pecuniary damages at $30,000.
 

Defendant Fails "To Recognize The 'Capital Asset” Approach"; Ordered To Pay Double Costs

Written by admin on . Posted in BCSC Civil Rule 9, Uncategorized.

Update August 5, 2015 – The below damages for Diminished Earning Capacity were overturned by the Court of Appeal and a new trial was ordered on the issue.
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Reasons for judgement were released today by the BC Supreme Court, Penticton Registry, ordering a Defendant to pay double costs for refusing to accept a bested pre-trial formal settlement offer.  In reaching this result the Court was critical in the Defendant’s failure to appreciate the ‘capital asset’ approach in assessing diminished earning capacity awards.
In this week’s case (Ostrikoff v. Oliveira) the Plaintiff was injured in a 2009 collision.  Prior to trial the parties exchanged a variety of formal settlement offers with the Plaintiff’s last offer coming in at $325,000 and the Defendant’s last offer being $100,000.  The matter proceeded to trial where damages of over $550,000 were assessed.  The Plaintiff was awarded post offer double costs and in finding the Defendant should have accepted the Plaintiff’s offer the Court provided the following comments:
[11]         The plaintiff, on the other hand, marshalled a combination of both expert and lay evidence.  The essence of the plaintiff’s case was that the plaintiff was involved in unique and highly skilled work which had a significant physical component and that the plaintiff’s chronic pain and physical impairments threatened both his business and his sole means of livelihood.  The uncontradicted expert evidence was that the plaintiff was not a suitable candidate for retraining. 
[12]         All of this was known to the defendant well before the trial began.  Expert reports had been delivered from orthopaedic surgeons, treating physicians, a functional capacity evaluator, a vocational consultant, a cost of care consultant, and an economist (regarding future loss multipliers).  No rebuttal reports were prepared by the defendants and much of the evidence was uncontradicted at trial.
[13]         Plaintiff’s counsel provided the defendant with a detailed rationale for the quantum of the first settlement offer in the amount of $325,000 made on March 8, 2013.  The nature and structure of the claim became obvious at that point, if it had not already been obvious beforehand.  Service of the plaintiff’s expert reports would have alerted the defendant to the possibility of a very significant claim being presented and possibly succeeding at trial. 
[14]         The only submission made by the defendant in defence of its refusal to accept the plaintiff’s settlement offer is that there was an absence of any “documented pecuniary loss” and of any expert or other reliable evidence supporting any pecuniary loss, whether past or future.  The submission, and indeed the defence’s entire approach to both the case and the settlement offer, fails to recognize the “capital asset” approach to assessment of damages for both past and future earning capacity in circumstances where the financial loss is not easily measurable. 
[15]         In my opinion, the February 17, 2014 settlement offer made by the plaintiff was reasonable and one that ought reasonably to have been accepted by the defendant before the commencement of trial.  A careful assessment of the strength of the plaintiff’s case on the eve of trial, having regard to the expert reports and the proposed lay testimony, as well as the principles of damages assessment in chronic pain cases involving potentially significant loss of capacity would have, and should have, resulted in a conclusion that a recovery at trial of sums in excess of the offer was a realistic prospect.  Instead, relying almost exclusively on tactics limited to cross-examination and putting the plaintiff to strict proof of his case, the defendant chose to proceed to trial to see what might happen.  Defendants are free to litigate the case in such fashion as they consider appropriate.  But as stated in Hartshorne, above, “[l]itigants are to be reminded that costs rules are in place to encourage the early settlement of disputes by rewarding the party who makes a reasonable settlement offer and penalizing the party who declines to accept such an offer”.
[16]         For these reasons, I exercise my discretion to award party and party costs to the plaintiff under Scale B up to February 17, 2014, and double that scale for all steps taken in the proceeding thereafter.